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Texas exceptions on waivers

3 weeks ago

can you list exceptions on a unconditional progress waiver for texas commercial project?

Senior Legal Associate Levelset

Texas is one of the relatively few states that has statutory mechanics lien waivers. The waiver templates are created directly from statute – and the unconditional waiver for progress payments can be found at § 53.284(c) of the Texas Property Code. And, as you may know, the template for an unconditional waiver for progress payment does not include an exceptions section.

The template set out in that section must be substantially complied with in order for the waiver to be effective. Meaning, if a lien waiver deviates too much from the form prescribed by the statute, then the waiver won’t be effective. But, there’s little guidance as to what might be too much of a deviation from the statutory form.

Would adding an exceptions section to a Texas unconditional waiver for progress payment be considered a “substantial change?”

It’s tough to know what, exactly, will be considered a substantial change to a lien waiver template. On one hand, specifically listing out exceptions doesn’t seem like much of a stretch. After all, the Texas unconditional progress lien waiver already has some mention of exceptions since they waive lien rights “except for unpaid retention, pending modifications and changes, or other items furnished.” On the other hand, if the Texas legislature wanted there to be listed-out exceptions, they could have provided for that in the waiver when they put it in the statute.

Unfortunately, I’m not able to give a cut and dry “yes” or “no” here. But, when in doubt, it’s often to play it safe when dealing in lien waivers. Otherwise, a claimant could end up waiving more rights than they intend to, or could end up with a totally invalid lien waive.

Additional resources

Levelset has written a lot about Texas lien waivers. Here are two great resources on the subject:

– Texas Lien Waivers Guide and FAQs
– Texas Lien Waiver Forms & Guide – All You Need to Know

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